Canada: How Enforcing The Minimum Wage Renders Some Individuals Unemployable

No one in this country should be made to work for less than $11
an hour. That is, unless you work in British Columbia where you can
work for $10.25 an hour, or New Brunswick where the minimum wage is
$10 an hour, or in the restaurant industry where tips are
considered part of your wage, and the exemptions list goes on.

The point is the minimum wage is arbitrary and implies there is
a minimum value for a person's work, no matter how menial,
unskilled or poorly performed the work is.

Most employers would beg to differ. So would economists who find
that minimum wage reduces employment by forcing employers into
using contractors or doing with less employees. Nevertheless,
society has come to accept the notion of a minimum wage despite its
impact on employers' bottom lines and accordant unemployment
rates.

A minimum wage also renders some individuals effectively
unemployable, such as those with disabilities. Terri-Lynn Garrie,
who was recently awarded $200,000 by the Ontario Human Rights
Tribunal, is a perfect example.

Garrie packaged wine bottles and was paid a mere $1.29 an hour
by Janus Joan Inc., which is far less than the minimum wage and,
arguably, shockingly low. Nevertheless, her situation and wage
worked well for all involved for 10 years. It allowed Garrie to
continue receiving benefits through the Ontario Disability Support
Program. By all accounts, she loved her job and "loved having
something to do." That effect on her self-worth appears to
have been the primary purpose of her employment.

But the arrangement came to an end when Garrie was terminated
and filed a claim of discrimination with the Tribunal. The Tribunal
found that her hourly wage of $1.29 was discriminatory and awarded
her $200,000. The employer made two key mistakes: It paid Ms.
Garrie less than minimum wage, and to the point, it paid
non-disabled employees performing the same job more than what it
paid her.

The unfortunate thing is Garrie is unlikely to ever find such a
mutually satisfactory arrangement again. She could attempt to
obtain employment at full pay, competing with non-disabled
individuals and placing her ODSP benefits at risk. Alternatively,
she could search for other full-time activities to occupy her and
provide routine, stimulus and a sense of value and worth.

However, even if Garrie offered to work for less than minimum
wage to make herself marketable relative to non-disabled
individuals, what employer would expose themselves to the risk of a
$200,000 award for discrimination?

More than 70% of working-age adults with intellectual
disabilities are unemployed or out of the labour force. In its
decision, the Tribunal urged the Ontario Human Rights Commission to
determine if the practice of paying intellectually disabled
individuals less than minimum wage was widespread and to make
recommendations for stopping such practices. As a result, we can
expect the number of unemployed working-age adults with
disabilities to increase.

Rest assured, discrimination will continue, just at an earlier
stage in the employment relationship when the employer decides not
to hire people with a disability. This is yet another instance of
the law of unintended consequences so prevalent in human rights
cases — where the laws purporting to protect older workers,
younger women and the disabled, only make employers more reluctant
to hire them.

After all, what possible incentives do employers have to try to
offset the inherent risks and costs of accommodating employees with
disabilities, including for altering hours or work, schedules,
purchasing additional equipment for workstations, as well as
possibly facing discrimination claims if things don't go as
planned?

Studies show that for some types of jobs intellectually disabled
employees outperform non-disabled employees in reliability and
attitude. With the following considerations in mind, employers can
reduce the risks posed from changes to Human Rights legislation
while gaining valuable employees.

Permanent vs. temporary Seasonal or temporary work has the
advantage of a pre-determined end to the employment relationship,
making it more difficult for an employee to claim that the reason
for termination was discriminatory.

Equal pay for equal work Another consideration is whether the
job is also performed by non-disabled employees. If so, employers
must be vigilant to ensure all employees are treated equally,
especially in terms of pay and other working conditions, to avoid a
potential discrimination claim. If a disabled employee is the only
one performing the work or all employees performing the work are
disabled, this risk would be mitigated.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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On June 22, 2017, Bill C-44, the Budget Implementation Act, 2017, No.1 received Royal Assent. The Act makes a number of changes to the Canada Labour Code (the "Code") that will impact federally regulated employers, both unionized and non-unionized.

On May 30, 2017, the Ontario government announced its intention to introduce new workplace legislation, The Fair Workplaces, Better Jobs Act, 2017, which would significantly amend Ontario's existing Employment Standards Act...

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